(1) The seven petitioners have been committed to the Court of Sessions at Dharwar under Section 207A(10) of the Code of Criminal Procedure to stand their trial for offences punishable under Ss. 148 and 302 read with S. 149 of the Indian Penal Code for committing the murder of one Gangayya on 6-5-1964. Mr. Government Pleader. P.L. Patil the learned Advocate appearing for the petitioners has submitted that the order of commitment passed by the Magistrate deserves to be quashed as there is no prima facie case against the accused.
(2) The story of the prosecution is that when deceased Gangayya was going along with Shantayya (P.W. 1) at about 1 A.M. he was murdered by all the accused somewhere on the road between Hireharkuni and Kamdolli. Besides Shantayya, Neelakanthagowda and Rudriah were alleged to be eye-witness to the incident. The prosecution also alleged that a blood-stained axe, a blood-stained sickle and a blood-stained knife were recovered during the course of the investigation of the information given respectively by Accused No. 1, Accused No. 2 and Accused No. 4. It was also alleged that the shirt worn by Accused No. 1 at the time of his arrest had some blood-stains. The investigation papers also disclosed that an axe was recovered at the instance of accused No. 3.
(3) During the course of the committal proceedings all the three eye-witnesses were examined by the Prosecutor. All of them stated that they did not know who committed the murder of Gangayya. The result of the evidence of the eye-witnesses recorded during the committal proceedings was that the prosecution could not establish the identity of any of the assailants responsible for the murder of Gangayya. At that stage the learned Advocate appearing for the accused submitted that in view of the evidence of the so-called eye-witnesses, there was no evidence disclosing a prima facie case against any of the accused and no basis for passing an order of commitment. The learned Magistrate however rejected this submission by relying on the decision of the Supreme Court in Ramnarayan v. State of Maharashtra, : 1964CriLJ44 wherein their Lordships laid down that the statements recorded by the Police during the course of the investigation together with the other documents and circumstances disclosed by the same formed evidence required to be considered by the Magistrate in considering as to whether the accused should or should not be committed.
(4) In the present case, the Magistrate lost sight of the fact that the statements of the three eye-witnesses recorded by the Police under S. 162 of the Code of Criminal Procedure during the course of the investigation could no longer be available to the prosecution for reliance in the committal proceedings when all of them were examined as witnesses in the committal proceedings and all those witnesses denied identification of any of the accused. In the words of the learned Magistrate the witnesses to the commission of the offence failed to support the prosecution on the material question of establishing the identity of the assailants of deceased Gangayya. In that event it is difficult to appreciate how he could derive any sustenance for his order from the aforesaid decision of the Supreme Court which does not contemplate a case where all the eye-witnesses to an incident have been examined and their evidence on oath is available for consideration before the Magistrate. Mr. Government Pleader. P.L. Patil has relied upon the decision of the Supreme Court in Bipat Gope v. State of Bihar, : AIR1962SC1195 wherein their Lordships held that S. 207-A(6) can only mean that if there is a prima facie case triable by a Court of Session, the Magistrate must commit the accused to the Court of Session to stand his trial.
(5) In the instant case if the previous statements of the three eye-witnesses on the material question of identify of the accused were eliminated by their evidence on oath before the Court, what remained before the Magistrate was only the production of blood-stained weapons recovered on the information given by Accused Nos. 1, 2 and 4 and a shirt with blood stains recovered at the instance of Accused No. 3. All this evidence if wholly accepted at its face value, would not at all connect any of the accused with the murder of Gangayya. In other words, the recoveries and the evidence in the instant case, to use the words of their Lordships of the Supreme Court, 'would not disclose a prima facie case triable by a Court of Session.'
(6) For the reasons aforesaid, we allow this petition and quash the order of commitment. The petitioners-accused are discharged. They should be set at liberty forthwith.
(7) Revision allowed.